Federalism and the Florida Constitution: The Self-Inflicted Wounds of Thrown-Away Independence from the Control of the U.S. Supreme Court

Marks, Thomas C., Jr., Albany Law Review

"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." (1)

For rather obvious reasons, fears for the health of our federal system of government have seemed to focus on the apparently ever-expanding grasp of the federal government on matters that once were items of the states' exercise of their inherent police power. Thus, for example, even incremental setbacks to the rapacious use by Congress of its power to regulate commerce between the states (2) should be cheered by defenders of federalism.

One would, then, hardly expect to find a state actually surrendering some of its power to the federal government, specifically the highest court of that government. Nevertheless, Florida has seen its constitution amended to do this, not once, but twice. (3) Both instances involved legislatively proposed changes to the state constitution that took away the power of Florida courts--ultimately the Florida Supreme Court--to interpret two provisions of the Florida Constitution's Declaration of Rights. The amendments removed provisions that Florida courts could interpret as guaranteeing more protection against the state than did the generally equivalent provisions of the Federal Constitution as interpreted by the U.S. Supreme Court. (4) Both occurred, incidentally, under circumstances where it could be argued that the electorate did not understand that for which it voted. (5)

In 1981, the Florida Legislature became concerned, if not alarmed, by the decision of the Florida Supreme Court in State v. Sarmiento. (6) There, the court issued a significant decision under Article I, Section 12 of the Florida Constitution--the search and seizure provision. (7) The court held that while an individual did not have a reasonable, expectation of privacy in a conversation held in his home because it might later be repeated, that individual did have a reasonable expectation of privacy against "unknown eavesdroppers [that] might clandestinely participate in that conversation and later reveal its contents." (8) The U.S. Supreme Court held on two prior occasions that such police conduct did not violate the Fourth Amendment. (9)

The Florida Legislature was also concerned that the developing law of good faith exceptions to the search and seizure exclusionary rule established by the U.S. Supreme Court would not be permitted to function in Florida due to the specific language of the Florida Constitution. (10) The Fourth Amendment's exclusionary rule is, of course, a product of judicial creation. (11)

Therefore, the legislature placed on the ballot in the 1982 General Election a proposed amendment to article I, section 12, which would tie both that section's limitations on search and seizure and its explicit exclusionary rule to the Fourth Amendment as interpreted by the U.S. Supreme Court. The amendment, in its entirety, read:

ARTICLE I

DECLARATION OF RIGHTS:

Section 12. Searches and seizures. The right of the people to
be secure in their persons, houses, papers and effects against
unreasonable searches and seizures, and against the
unreasonable interception of private communications by any
means, shall not be violated. No warrant shall be issued
except upon probable cause, supported by affidavit,
particularly describing the place or places to be searched, the
person or persons, thing or things to be seized, the
communication to be intercepted, and the nature of evidence
to be obtained. This right shall be construed in conformity
with the 4th Amendment to the United States Constitution, as
interpreted by the United States Supreme Court. Articles or
information obtained in violation of this right shall not be
admissible in evidence if such articles or information would
be inadmissible under decisions of the United States Supreme
Court construing the 4th Amendment to the United States
Constitution. …

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